Del Sesto v. Turchetta, 9218

• Decision Date: 17 June 1957
• Docket Number: No. 9218,9218
• Citation: 133 A.2d 130,85 R.I. 474
• Parties: Eraclio L. DEL SESTO et al. d.b.a. Community Builders v. John TURCHETTA. Ex.
• Court: Rhode Island Supreme Court

Page 130

133 A.2d 130

85 R.I. 474

Eraclio L. DEL SESTO et al. d.b.a. Community Builders v. John TURCHETTA.

Ex. No. 9218.

Supreme Court of Rhode Island.

June 17, 1957.

Kirshenbaum & Kirshenbaum, Louis Kirshenbaum, Providence, for plaintiffs.

Ralph Rotondo, Joseph Bevilacqua, Providence, for defendant.

ANDREWS, Justice.

This is an action of the case in assumpsit based upon the alleged promise of the defendant to pay certain outstanding debts which were contracted by the plaintiffs in connection with a building contract. The case was heard by a justice of the superior court, sitting without a jury, who rendered a decision for the plaintiffs for $717.86. The defendant excepted to the decision, and this exception together with twenty-eight others taken to rulings made during the trial constitute his bill of exceptions.

On August 7, 1947 the parties entered into a written contract whereby plaintiff undertook for $10,600 to relocate an existing building and to erect a gasoline station on property of defendant. The work was started in the late summer but owing to a severe winter the contract could not be finished that year. Work was resumed the next spring, but the parties became involved in disputes and went to the office of an attorney to straighten out their difficulties. Nothing final was accomplished at that meeting, but a list of plaintiffs' unpaid bills was made out. At another meeting in defendant's office the parties executed mutual releases. The consideration in each release is recited as follows: 'Ten Dollars ($10.00) and other and good and valuable consideration * * *.' For such consideration the parties released 'all matters arising out of the construction of a building located at 701 New London Avenue, Cranston, Rhode Island * * *.' At or about this time plaintiffs furnished defendant with the above list of unpaid bills and they gave him their general release.

The plaintiffs testified that the work was practically completed at that time and they had owing them under the contract and for extras a sum somewhat in excess of the unpaid bills. There was also testimony that defendant agreed to pay those bills and that the releases were not to become effective until the outstanding bills had been paid. The defendant admitted that the total of those bills and the amount due plaintiffs were approximately the same. The defendant also admitted that he paid all but three of the bills on the list, and while he denied that he promised to do so he conceded that on the list was a notation 'To be paid' which might have been put there by his wife who did his bookkeeping. The trial justice found that defendant did promise to pay the outstanding bills and that the releases were to become effective only upon payment of such bills.

The defendant's main defense was that the admission of oral testimony relative to...